Stretford v The Football Association Ltd & Another (CA)
Reference:  EWCA Civ 238;  2 Lloyd's Rep 31; (2007) Bus LR 1052; (2007) 1 CLC 256; The Times, 13 April 2007
Court: Court of Appeal
Judge: Sir Anthony Clarke MR, Waller and Sedley LLJ
Date of judgment: 21 Mar 2007
Summary: FA disciplinary proceedings – Declaratory relief - Restraint of trade - Public policy - Article 6, ECHR - Arbitration agreement under FA rules – Stay - s.9(1), Arbitration Act 1996
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Instructing Solicitors: Halliwells for the Claimant; Charles Russell for the Defendants
The FA issued disciplinary proceedings against Paul Streford (“S”). S started High Court proceedings, seeking declarations that the disciplinary proceedings did not comply with Art. 6 ECHR, and that the relevant FA rules and/or charges were in unlawful restraint of trade and/or contrary to public policy. There were discussions between the legal representatives of the parties concerning the stay of the disciplinary proceedings pending the outcome of the High Court challenge. The FA applied to stay the action under s 9(1) Arbitration Act 1996, because of the arbitration agreement in the FA Rules.
(1) Whether the arbitration agreement was incorporated into the contract;
(2) Whether the relief claimed in the High Court proceedings fell within the arbitration agreement;
(3) Whether the FA had waived its right to rely on the arbitration agreement in the discussions;
(4) Whether the procedure under the FA rules was incompatible with Art.6 so as to render the agreement void or otherwise inoperative under s 9(4) Arbitration Act 1996, and thereby prevent the grant of a stay under s 9(1)
(1) The agreement was incorporated into the contract, the terms having been fairly and reasonably drawn to S’s attention.
(2) The issues fell within the arbitration agreement, being a relevant “dispute or difference”.
(3) No agreement was reached in the discussions precluding the FA from relying on the arbitration agreement as a defence.
(4) The procedure was Art.6 compliant, because of (a) the content of the arbitration scheme under the FA Rules and the contents of the 1996 Act including the possibility of appeals and applications for removal of arbitrators for lack of impartiality and (b) the waiver constituted by the arbitration agreement and subsequent conduct of the parties. The waiver also satisfied the relevant Convention jurisprudence, being neither equivocal, nor made by “undue compulsion” (a concept adequately addressed by the relevant rules of the common law and equity, none of which applied to the facts) nor contrary to any public interest.
The decision provides an interesting though unsurprising analysis of the inter-relationship of Article 6 with arbitration. The court also saw no reason why arbitration could not be invoked to deal with public policy issues, such as restraint of trade and whether or not regulatory rules and charges were themselves contrary public policy; indeed, the contrary was not argued.